OH8: Trial court’s order to permit def to inspect victim’s home which was scene of the crime violated 4A rights of victim

To prepare for trial, defendant sought an inspection of the victim’s home, the scene of the alleged crime of attempted murder. The trial court erred in the balancing the interests involved of the defendant’s right to a fair trial and right to prepared counsel with the victim’s Fourth Amendment right of privacy in her home. The victims have a right of privacy in their own home. (The state constitution also has a victim’s rights provision, but that doesn’t necessarily alter the outcome.) State v. Counts, 2022-Ohio-3666, 2022 Ohio App. LEXIS 3470 (8th Dist. Oct. 13, 2022):

[*P37] The Fourth Amendment is not inviolate, but an intrusion into a home by order of the government to be lawful requires specific justification. For a search warrant to issue, the intrusion must be based upon a finding of probable cause. Additionally, in considering ordering the production of privileged or confidential documents in discovery, the party seeking that material must articulate a demonstrated need for the material. Thus, any balancing of rights to be undertaken between Counts’s trial rights and the victims’ right to privacy; the right to be secure in persons, houses, papers, and effects against unreasonable searches and seizures; and the right to refuse a discovery request must recognize that the requested discovery is necessary to preserve a defendant’s trial rights. A showing that the discovery requested is necessary is akin to the heightened requirements a court must find to order disclosure of privileged information, as well as the heightened requirements that a court must find to allow the state to enter a home.

[*P38] The trial court did not apply the proper standards in its balancing test when assessing the victims’ rights against Counts. As discussed supra, the trial court did not find that Counts demonstrated a specific need for the discovery requested. The trial court compared the effects of denying Counts’s request for discovery against the intrusion into the victims’ home, noting the potential prison sentence Counts faced and contrasted this potential penalty against the effect the victims would suffer as being a de minimis intrusion into their home and a “brief invasion of privacy.” By so doing, the trial court applied an incorrect standard when conducting the balancing test. The trial court did not require a showing that the discovery was necessary and did not balance the competing constitutional rights between Counts and the victims, but instead balanced the potential effects the grant or denial of the order would have on them. Further, we note that the trial court stated that a denial of Counts’s “right to obtain evidence in order to assist in her defense at trial” would deny her constitutional rights implicating her right to counsel. To the extent that the trial court elevated any procedural right of discovery to be a constitutional trial right, we similarly find the trial court applied an incorrect standard where no constitutional right to discovery has been found.

[*P39] We recognize that a criminal defendant is entitled to due process of law, effective assistance of counsel, and a fair trial. In this case, Counts argues that her right to inspect the crime scene is protected under the panoply of trial rights found to be constitutional rights. …

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